Citation Nr: 9837106
Decision Date: 12/21/98 Archive Date: 12/30/98
DOCKET NO. 97-04 839 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for spastic colon.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1991 to
December 1995.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a September 1996 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Atlanta, Georgia, which, in pertinent part, denied service
connection for spastic colon.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran maintains, in essence, that he incurred a spastic
colon during military service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has failed to
satisfy the initial burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
his claim for service connection for spastic colon is well
grounded.
FINDINGS OF FACT
1. The veteran has a current diagnosis of spastic colon.
2. During service, the veteran was treated for complaints of
stomach discomfort, cramps, and diarrhea, and diagnoses
included acute gastroenteritis.
3. There is no competent medical evidence of a link between
the veteran’s current spastic colon and any disease or injury
in service, and his claim is not plausible.
CONCLUSION OF LAW
The veteran has not presented a well-grounded claim for
service connection for spastic colon, and there is no
statutory duty to assist him in developing facts pertinent to
this claim. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
In September 1996, the veteran filed a claim for service
connection for a spastic colon. His service medical records
showed no treatment for a spastic colon. He did complain of
gastrointestinal symptoms such as nausea, stomach discomfort,
cramps, and diarrhea in October 1992, September 1993, June
1994, and October 1995. Diagnoses were acute
gastroenteritis, viral syndrome, and gastritis. On his
report of medical history for separation, the veteran
complained of stomach, liver, or intestinal trouble, and it
was noted that he occasionally had nausea and discomfort.
Upon VA examination in January 1996, the veteran indicated
that he was frequently constipated and, after 2-3 days of
constipation, he occasionally had diarrhea after a bowel
movement. His abdomen was soft and tender all over. Bowel
sounds were positive in all quadrants.
Associated with the claims file are the veteran’s VA medical
records covering the period January 1996 to June 1997. In
June 1996, he complained of periods of nausea and diarrhea
that lasted from 4-7 days. He was referred for a barium
enema. The barium enema conducted in July 1996 showed that
the veteran experienced a lot of colonic spasm and pain
during the examination. However, upon maneuvering him onto
his stomach, the spasm was reduced. The barium enema was
negative for any abnormalities other than loss of colonic
spasm. In August 1996, a diagnosis of spastic colon was
rendered. In February 1997, the veteran was again treated
for spastic colon and irritable bowel syndrome.
In April 1998, the veteran underwent a VA examination. The
examiner reviewed the claims file, including the service
medical records, the prior VA examinations, and all VA
records including the report of the barium enema. The
veteran complained of a changing cycle of diarrhea,
constipation, and normal bowel movements. He stated that he
had had these symptoms for three years. He indicated that he
had seen a physician in 1992 for constipation and was treated
with Metamucil. He stated that he had seen a physician once
or twice between 1992 and 1994 for diarrhea. He indicated
that he had changed his diet and he was drinking a lot of
water, without any change. He denied any fever, chills,
nausea, vomiting, blood in the stool, hematemesis, or
hematochezia. The veteran reported a history of weight
fluctuation, including a gain of 60 pounds in the first 18
months after service and a loss of 50 pounds over the prior
nine months. He had also lost 60 pounds in the 6-7 months
prior to joining service.
Examination showed that the veteran’s abdomen was flat and
slightly obese, but soft. There was no localized tenderness,
guarding, rigidity, or rebound. Bowel sounds were present.
There was no hepatosplenomegaly or hernia. The diagnosis was
spastic colon. The examiner stated that the service medical
records were consistent with symptomatology of nausea,
vomiting, stomach cramps, and at times diarrhea, all
consistent with the diagnosis made at that time of acute
gastroenteritis. The veteran recovered from each episode
without any long-term sequelae. The examiner concluded that
it would be pure conjecture that there was a relationship
between the veteran’s current symptomatology of spastic
colon, found on barium enema, and the acute gastroenteritis
during service. It was also noted that it would be pure
conjecture to conclude that spastic colon had its onset
during service.
II. Legal Analysis
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110 and 1131
(West 1991); 38 C.F.R. § 3.303(a) (1998). It is the
responsibility of a person seeking entitlement to service
connection to present a well-grounded claim. 38 U.S.C.A.
§ 5107 (West 1991).
Generally, a well-grounded claim is a “plausible claim, one
which is meritorious on its own or capable of
substantiation.” Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). In order to be well grounded, a claim for service
connection must be accompanied by supporting evidence that
the particular disease, injury, or disability was incurred in
or aggravated by active service; mere allegations are
insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611
(1992); Murphy, 1 Vet. App. at 81. In general, the veteran’s
evidentiary assertions are accepted as true for the purpose
of determining whether a well-grounded claim has been
submitted. King v. Brown, 5 Vet. App. 19, 21 (1993).
A claim for service connection requires three elements to be
well grounded. It requires competent (medical) evidence of a
current disability; competent (lay or medical) evidence of
incurrence or aggravation of disease or injury in service;
and competent (medical) evidence of a nexus between the in-
service injury or disease and the current disability. Epps
v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v.
Brown, 7 Vet. App. 498, 506 (1995); aff’d 78 F.3d 604
(Fed.Cir. 1996) (table). This third element may be
established by the use of statutory presumptions. Caluza, 7
Vet. App. at 506. Truthfulness of the evidence is presumed
in determining whether a claim is well grounded. Id. at 504.
The second and third Caluza elements can also be satisfied
under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a
condition was “noted” during service or during an
applicable presumption period; (b) evidence showing post-
service continuity of symptomatology; and (c) medical or, in
certain circumstances, lay evidence of a nexus between the
present disability and the post-service symptomatology.
Brewer v. West, 11 Vet. App. 228, 231 (1998); see also Savage
v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively,
service connection may be established under 38 C.F.R. §
3.303(b) by evidence of (i) the existence of a chronic
disease in service or during an applicable presumption period
under 38 C.F.R. § 3.307 and (ii) present manifestations of
the same chronic disease. Brewer, 11 Vet. App. at 231. The
veteran’s colon disability is not one subject to presumptive
service connection under applicable law. Cf. 38 C.F.R.
§ 3.309 (1998). Section 3.303(b) provides an alternative
method of demonstrating entitlement to service connection.
Rose v. West, 11 Vet. App. 169, 171-172 (citing Savage, 10
Vet. App. at 495-6 (section 3.303(b) is provision that
veteran “may utilize” because it provides “a substitute
way” of proving service connection)).
The medical evidence does not establish that the veteran had
a chronic colon disorder during service. Over a 4-year
period, he was only treated on four occasions for
gastrointestinal complaints that included diarrhea. The
diagnoses were acute gastroenteritis, viral syndrome, and
gastritis. At no time during service was a diagnosis of
spastic colon, or any other bowel disorder, rendered.
The current medical evidence shows a diagnosis of spastic
colon. As indicated above, the veteran was treated during
service for complaints of diarrhea. Therefore, there is
sufficient evidence of a current disability and of a disease
during service, and the first two elements of a well-grounded
claim for service connection have been satisfied.
However, there is no competent medical nexus evidence to
associate the veteran’s current spastic colon with a disease
or injury during service. At no time has a medical
professional rendered an opinion that the currently diagnosed
spastic colon is related to the veteran’s active service in
any manner. In fact, the VA examiner in 1998 stated that it
would be pure conjecture to reach such a conclusion.
The medical evidence shows the veteran’s intermittent
complaints of diarrhea and constipation from January 1996,
shortly after his separation from service, until the present.
He is certainly competent to report experiencing such
symptoms. Even accepting his complaints as representative of
continuity of symptomatology, there is no competent medical
opinion of record associating his current spastic colon with
his prior complaints of diarrhea and/or constipation. Cf.
Savage, 10 Vet. App. at 497.
The veteran’s opinion that his current spastic colon is
related to the inservice complaints and/or his post-service
symptoms is not competent evidence. See Edenfield v. Brown,
8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App.
69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A
spastic colon is not the type of observable medical condition
for which lay observation is enough to identify its
existence. Savage, 10 Vet. App. at 495; see also Layno v.
Brown, 6 Vet. App. 465, 470 (1994) (lay evidence is competent
only when it regards the features or symptoms of an injury or
illness). Despite the credibility of the veteran’s
statements, he cannot meet his initial burden under
38 U.S.C.A. § 5107(a) simply by relying on his own opinion as
to medical causation.
The veteran has the initial burden of establishing a well-
grounded claim for service connection for a disorder, and,
until he does so, VA has no duty to assist his including by
providing him an additional VA examination. 38 U.S.C.A.
§ 5107(a) (West 1991); see Grivois v. Brown, 6 Vet. App. 136,
139-140 (1994).
When a claimant refers to a specific source of evidence that
could make his claim plausible, VA has a duty to inform him
of the necessity to submit that evidence to complete his
application for benefits. See Epps v. Brown, 9 Vet.
App. 341, 344-45 (1996), aff’d Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997). The Board finds VA has no outstanding duty
to inform the veteran of the necessity to submit certain
evidence to complete his application for VA benefits.
38 U.S.C.A. § 5103(a) (West 1991). There is no indication of
any medical records that might well ground his claim. The
veteran has at no time indicated that a medical professional
has rendered an opinion that he has a spastic colon as a
result of his military service.
The presentation of a well-grounded claim is a threshold
issue, and the Board has no jurisdiction to adjudicate this
claim unless it is well grounded. Boeck v. Brown, 6 Vet.
App. 14, 17 (1993). There is no duty to assist further in
the development of this claim, because such additional
development would be futile. See Murphy, 1 Vet. App. 78.
ORDER
Entitlement to service connection for spastic colon is
denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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